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Today's Opinions: July 25, 2005Volume 11  Number 140

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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New Opinion(s) from the Tennessee Supreme Court

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New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel

New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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RICKY GENE CAMPBELL v. WANDA SUZANNE CAMPBELL
Court:TCA
Attorneys:
Barry J. McWhirter, for the appellant, Wanda Suzanne Campbell.
Steven C. Grubb, for the appellee, Ricky Gene Campbell.
Judge: KIRBY
First Paragraph:
This is a child custody dispute involving the appointment of a
guardian ad litem. The parties agreed to the appointment of a guardian
ad litem. After an investigation, the guardian ad litem recommended
that primary custody be awarded to the father. The mother filed a
motion to remove the guardian ad litem. The trial court did not do so.
After a bench trial, the father was designated the primary residential
parent. The mother asserts that the guardian ad litem appointed by the
trial court appeared biased towards the father because the guardian ad
litem knew the father's sister. The mother now appeals. We affirm,
finding no abuse of discretion in the trial court's decision not to
remove the guardian ad litem.
http://www.tba.org/tba_files/TCA/2005/campbellr72505.pdf

LINDA M. FERRELL v. CHARLES R. FERRELL
Court:TCA
Attorneys:
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Charles R.
Ferrell.
Laura Y. Goodall, Gallatin, Tennessee, and Robert Todd Jackson,
Nashville, Tennessee, for the appellee, Linda M. Ferrell.
Judge: CLEMENT
First Paragraph:
Husband appeals the division of marital property. The trial court
found Husband did not bring into the marriage as many assets as Wife
did, thus awarding a greater portion of the parties' home to Wife
rather than Husband. The trial court further found that Husband had
dissipated marital assets when he sold the parties' horse riding rings
in violation of the statutory injunction. Husband claims that the
division of property was not equal and challenges the finding that he
dissipated marital assets while not making the same finding with
regard to Wife. We affirm.
http://www.tba.org/tba_files/TCA/2005/ferrelll72505.pdf

FREDDIE OSBORNE v. COLLIER GOODLETT
Court:TCA
Attorneys:
Freddie Osborne, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General,
for the appellee, State of Tennessee
Judge: CAIN
First Paragraph:
This is a legal malpractice action in which Plaintiff, incarcerated at
Turney Center Industrial Prison, appeals the dismissal by the trial
court of his action against his court-appointed assistant public
defender. Holding the defendant immune from suit under Tennessee Code
Annotated section 8-14-209, the trial court dismissed the Complaint.
We affirm the action of the trial court.
http://www.tba.org/tba_files/TCA/2005/osbornef72505.pdf

JOHNNY L. BEARD, SR. v. STATE OF TENNESSEE
CORRECTED OPINION WITH MEMO
Court:TCCA
Attorneys:
John H. Henderson, District Public Defender and Elizabeth L. Youmans
Assistant District Public Defender, for the appellant, Johnny L.
Beard, Sr.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: MCLIN
First Paragraph:
The petitioner appeals from the post-conviction court's dismissal of
his petition for postconviction relief. He contends that the
post-conviction court erred in concluding that his petition was
untimely filed without appointing counsel and conducting an
evidentiary hearing to determine whether due process considerations
tolled the statute of limitations. Following our review, we affirm the
dismissal of the petition.
CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/beardj72505.pdf
MEMO
http://www.tba.org/tba_files/TCCA/2005/beardj_mem72505.pdf

CHRISTOPHER COOK v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Kenneth Quillen, Nashville, Tennessee, for the appellant, Christopher
Cook.
Paul G.Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner, Christopher Cook, appeals the denial of his petition
for post-conviction relief, arguing that he received ineffective
assistance of trial counsel. After our review, we affirm the
postconviction court's denial of the petition.
http://www.tba.org/tba_files/TCCA/2005/cookc72505.pdf

ANTHONY D. FORSTER v. STATE OF TENNESSEE
ORDER
Court:TCCA
Judge: PER CURIAM
First Paragraph:
In an opinion filed June 24, 2005, this court affirmed the trial
court's dismissal of the petitioner's petition for post-conviction
relief, concluding that the single issue presented in the petition,
whether the waiver of the right to counsel was voluntary, had been
previously determined by this court on direct appeal. On July 11,
2005, the petitioner, Anthony Forster, filed a petition to rehear
pursuant to Tennessee Rule of Appellate Procedure 39. He complains
that this court misapprehended a material fact and that this court
ruled on an issue upon which the parties had not been heard. He
asserts that this court erred by concluding that the issue had been
previously determined because the propriety of this court's opinion on
direct appeal had not been addressed. Further, he contends that the
parties were not heard on the issue because the state in its brief
asserted that the issue had been waived and did not address the merits
of the claim.
ORDER
http://www.tba.org/tba_files/TCCA/2005/forstera72505.pdf

STATE OF TENNESSEE v. LAMONN LEE HARRIS
CORRECTED OPINION WITH MEMO
Court:TCCA
Attorneys:
Andrew Jackson Dearing, III., Assistant Public Defender, Shelbyville,
Tennessee, for the appellant, Lamonn Lee Harris.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: MCLIN
First Paragraph:
The defendant, Lamonn Lee Harris, entered an open guilty plea to
fourteen counts of forgery, Class E felonies, and one count of theft
less than $500.00, a Class A misdemeanor. He was sentenced to an
effective sentence of six years as a Range I, standard offender. On
appeal, he argues that the trial court erred in denying alternative
sentencing and in imposing an excessive sentence. Following our
review, we affirm the judgments of the trial court.
CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/harrisl72505.pdf
MEMO
http://www.tba.org/tba_files/TCCA/2005/harrisl_mem72505.pdf

STATE OF TENNESSEE v. LARRY HOLMES
CORRECTED OPINION
Court:TCCA
Attorneys:
Charles E. Waldman, Memphis, Tennessee, for the appellant, Larry
Holmes.
Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; James A. Wax, Jr., and Michelle Parks, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
A Shelby County jury convicted the defendant, Larry Holmes, of four
counts of especially aggravated kidnapping, a Class A felony, two
counts of aggravated robbery, a Class B felony, and one count of
aggravated burglary, a Class C felony. The trial court merged the two
aggravated robbery convictions into the especially aggravated
kidnapping convictions and sentenced the defendant as a repeat violent
offender to concurrent sentences of fifty-five years at one hundred
percent for the especially aggravated kidnapping convictions and as a
career offender to fifteen years for the aggravated burglary
conviction to be served consecutively to the especially aggravated
kidnapping sentences for an effective sentence of seventy years. On
appeal, the defendant contends that (1) the evidence was not
sufficient to support his convictions for especially aggravated
kidnapping and aggravated robbery, (2) the trial court erred by
denying his request for a mistrial based upon a misstatement by an
officer testifying for the state, and (3) the trial court erred in
imposing his sentences.1 We affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/2005/holmesl72505.pdf

RONNIE LEE HOLT v. RICKY BELL, WARDEN
Court:TCCA
Attorneys:
Ronnie Lee Holt, Nashville, Tennessee, Pro Se.
Michael E. Moore, Solicitor General; Elizabeth B. Marney, Senior
Counsel; Victor S. (Torry) Johnson, III, District Attorney General;
and Kathy Morante, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The petitioner challenges the denial of his habeas corpus petition, in
which he contended that his absence from voir dire violated his
constitutional rights and Tennessee Rule of Criminal Procedure 43(a)
because he did not personally waive the right to be present. We
initially note that, at the time of the petitioner's trial, a personal
waiver of the right was not required. We conclude that there is no
jurisdictional defect apparent from the record. Therefore, we affirm
the denial of habeas relief.
http://www.tba.org/tba_files/TCCA/2005/holtr72505.pdf

JORGE ACOSTA RUBIO v. TONY PARKER, WARDEN
Court:TCCA
Attorneys:
Jorge Acosta Rubio, pro se.
Paul G.Summers, Attorney General & Reporter; David Edward Coenen,
Assistant AttorneyGeneral, for the appellee, the State of Tennessee.
Judge: MCLIN
First Paragraph:
The Petitioner, Jorge Acosta Rubio, appeals the trial court's denial
of his petition for habeas corpus relief. The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The
Petitioner has failed to allege any ground that would render the
judgment of conviction void. Accordingly, we grant the State's motion
and affirm the judgment of the lower court.
http://www.tba.org/tba_files/TCCA/2005/rubioj72505.pdf

CHRISTOPHER ROBERT SMITH v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Christopher Robert Smith.
Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; Tammy Meade, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The petitioner, Christopher Robert Smith, seeks post-conviction relief
on the basis of ineffective assistance of counsel. After being
convicted by a jury of conspiracy to possess with intent to
manufacture, deliver or sell over 300 grams of cocaine, the petitioner
appealed. Ondirect appeal this Court affirmed both his conviction and
sentence. State v. Christopher Robert Smith, No. M2001-
02297-CCA-R3-CD, 2002 WL 31202132 (Tenn. Crim. App., at Nashville,
Sept. 27, 2002), perm. app. denied (Feb. 24, 2003). The petitioner
then filed a petition for post-conviction relief. After a hearing, the
post-conviction court dismissed the petition. For the following
reasons, we affirm the post-conviction court's dismissal of the
petition for post-conviction relief.
http://www.tba.org/tba_files/TCCA/2005/smithc72505.pdf

CLYDE T. SMITH v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Clyde
T. Smith.
Paul G.Summers, Attorney General and Reporter; Thomas
E.Williams,Assistant Attorney General; Victor S. Johnson, District
Attorney General; and Dan Hamm, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Clyde T. Smith, appeals from the trial court's
dismissal of his petition seeking habeas corpus relief. The State has
filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals. The State's motion is granted. The judgment of the trial
court is affirmed.
http://www.tba.org/tba_files/TCCA/2005/smithct72505.pdf

AUTHOR RAY TURNER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Author Ray Turner, pro se.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Author Ray Turner, appeals the trial court's denial of
his motion to reopen his petition for post-conviction relief
contending that Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531
(2004) established a new rule of law that was retrospectively
applicable to his case and entitled him to reopen his post-conviction
proceedings. The State has filed a motion requesting that this Court
affirm the trial court's denial of relief pursuant to Rule 20, Rules
of the Court of Criminal Appeals. We find the State's motion has
merit. Accordingly, the motion is granted and the appeal is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.
http://www.tba.org/tba_files/TCCA/2005/turnera72505.pdf

MELVIN E. WATERS v. KENNETH LOCKE, WARDEN
Court:TCCA
Attorneys:
Charles Edward Walker, Nashville, Tennessee, for the appellant, Melvin
E. Waters.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The petitioner has appealed
the trial court's order summarily dismissing the petition for the writ
of habeas corpus. In that petition the petitioner sought a writ of
habeas corpus to release him from his sentence for facilitating
aggravated robbery. We are persuaded that the trial court was correct
in summarily dismissing the habeas corpus petition and that this case
meets the criteria for affirmance pursuant to Rule 20, Rules of the
Court of Criminal Appeals. Accordingly, the State's motion is granted,
and the judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/2005/watersm72505.pdf

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